Court Rules That Woman Wrongfully Placed On No Fly List Should Be Taken Off The List... We Think

from the no-fly dept

We've written a few times about the troubling case of Rahinah Ibrahim, a PhD. student at Stanford who was wrongfully placed on the "no fly" list because (it appears) some clueless law enforcement officials mixed up the names of a networking group of professional Muslims in Malaysia who had returned from work or study in the US and Europe (which she was a part of) and a very, very different terrorist organization. While she had received something of an apology for initially not being allowed to fly to Malaysia (and then allowed to fly), it appeared that her name was then placed on the no fly list, preventing her from ever returning. She was later blocked from even flying back to the US for her lawsuit against the government.

The ruling issued today, and we'd love to tell you what's in it... except for the fact that it's sealed. Judge William Alsup has stated that he believes that the entire order should be made public, but that the US government is fighting that. So, for now, the order is under seal until April 15, while Homeland Security is supposed to agree to what it will allow to be released in a redacted version. However, in the meantime, Judge Alsup has released a "public notice and summary" of the findings of fact -- basically revealing what he can of the order. Many of the important details are still missing, but it certainly sounds like Ibrahim has mostly succeeded in the case. Alsup notes that "some but not all of the relief" sought by Ibrahim has been granted. And this includes having her name scrubbed from the no fly list:

Once a plaintiff
shows concrete, reviewable adverse government action has occurred, and, as here, shows that the
action resulted from an error by the government, then the plaintiff is entitled by due process to a
post-deprivation remedy that requires the government to cleanse and/or correct its lists and
records of the mistaken information and to certify under oath that such correction(s) have been
made. The government’s administrative remedies fall short of such relief and do not supply
sufficient due process. In light of the confusion caused by the government’s mistake, such
cleansing-certification relief is ordered in this case. Also, the government is ordered to disclose
to plaintiff her current status on (or off) the no-fly list (without prejudice to future adjustments
based on new information). In this connection, the government concedes that plaintiff is not a
threat to our national security.

That appears to suggest that the government ought to remove her from the no fly list and let her know that she's now off the list. But it's not entirely clear that's the case. In theory, they could inform her that she's still on the list as well.

On the later decision by the US government to deny her a visa, the court orders DHS to provide an actual reason in the law for the denial. It would appear that the previous denials did not specify one of the "nine subsections" in the law for which a visa can be denied, and Alsup has ordered DHS to "remedy" that. It also hints very, very strongly (as was pretty clear during the trial), that in refusing her visa, she was told that she was not eligible for a waiver when, in fact, she was. Thus, he orders the government to properly let her know that she can apply for a waiver... but notes that the court cannot review the eventual decision as to whether or not she's granted a visa.

Nothing is said in all of this about the later actions by DHS to block Ibrahim's daughter, a US citizen, from flying to the US to testify in the case. Though, perhaps there is something about that in the sealed documents.

All in all, it appears that Ibrahim has mostly prevailed here, but the details could be rather important. And, it also appears that even with all of this, the court may be quite limited in how much it can force the government to take someone who has been falsely placed on the no fly list, off of it. Hopefully, the full decision will provide greater clarity.

Re:

I suspect the counterargument to that would be something like:

"The criteria used to determine whether or not someone is a threat to our national security are sensitive information, because if those criteria were publicly known, the people who are classified as threats would realize it, and would be able to avoid placing themselves at risk of capture."

There are counters to that argument as well, of course - I can think of at least three possible angles to take, just off the top of my head. But it is sufficiently plausible to at least make as an argument against releasing the information.

Unfortunately for her, new information has just been obtained. It has recently come to light that she prevailed in a case against the DHS. If we allow that to continue to happen, the DHS will become weaker, allowing terrorists to bomb us fortnightly. Therefore, she is a threat to our national security and is hereby placed on the no-fly list.

It's truth. It's not retributional at all. We even signed a promise to that, but we can't let you see it for security reasons.

Don't you love how democracy has turned out with our most transparent presidency ever? Not only is the administration being purposely obstinate but it stonewalls at pretty much every opportunity that it can't claim National Security.

So you come out with lists to ban and block that no one can know who, what, or where, is on them.

We are too the point that just one more little shove will result in any that criticize how things are run, being picked up for re-education. It won't take much for this to happen. After all Obama is more concerned that his changes for the NSA stop future Snowdens; nothing about changing how the department operates.

What's wrong with this picture? Does this sound like any other country that might come to your mind?

I don't understand why schools are still teaching children that there are "checks and balances" to keep the government honest and that people have rights.

There are no checks or balances anymore, the government does whatever it likes with no accountability, and people no longer have "rights", they have government granted privileges that can be withdrawn on a whim.

Re:

Social control. Keeps the masses quiet when they think that those in powerful positions are beholden to the laws just like everyone else, and that 'anyone can become a politician and help shape and guide the country', rather than what it actually is, a club exclusively for the rich.

this sort of behavior is done simply because DHS can do it! there is no grounds to deny her or her daughter anything, let alone have them on 'no fly lists'! no one should be put on any list by anyone, let alone the government, that is detrimental to the person(s) unless the true reasons are made available and the proof that goes with those reasons given as long with the chance to rebuff the reasons. what is the point of having someone on a list that disallows them from going anywhere, just because someone has a weed up their arse on that particular day!

I'm not sure why there are so many complaints about a "police state" and a lack of checks and balances. Reality check folks: this case is an extremely straightforward example of checks and balances actually working.

Sure, the order has been sealed for now. But given how doggedly the judge has pursued the government, do you really think he isn't going to release a version in April? I would venture a guess he'll argue with any unnecessary redactions? (that isn't a word but what is the right one....)

And to the person that said there is no valid reason to seal it if she poses no threat to national security - that's not necessarily true. If the government's original mistake was "We think she met with the leader of a terrorist group at XYZ" it would reveal they were watching the city or tracking the group. Now, I don't actually believe they need to seal the order, mostly based on what the judge (who has shown excellent judgement in the case) says about it, but that there isn't a scenario where sealing the order would be valid.

I am not supporting the government in this case. They have created a system in which innocents can be unjustly punished without any defense or recourse. That is WRONG, and unconstitutional in spirit and in law. But don't take this case as some kind of cause for concern - this is the first step in the right direction.

Ruling still doesn't change the underlying problem...

"In light of the confusion caused by the government’s mistake, such cleansing-certification relief is ordered in this case."

If I made a mistake and broke the law (say I didn't pay my fair share of taxes) I don't think the government will be nearly this lenient. but when the government makes a mistake and makes people's lives much more difficult there is almost no punishment against those mistaken officials.